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Opinion: Laura Connor

While the proposed redress scheme for survivors of in-care childhood abuse is to be commended, it will not bring full financial justice, and survivors will still need the help of specialist lawyers

by Laura Connor

The announcement of the Scottish Government financial redress scheme on 23 October represented the formal response to the consultation and report published on the CELCIS (Centre for Excellence for Looked-after Children in Scotland) website in September. The Deputy First Minister declared that he was “determined that [the scheme will] treat survivors with sensitivity and respect”. The announcement only scratched the surface of the full recommendations and much more detail is needed to inform the extent to which these will be followed. Nevertheless it can be seen as central to the Government’s vision for the scheme that it:

applies only to survivors and victims of in-care abuse;

shall be “sensitive and respectful to survivors”;

is very unlikely to be adversarial in process;

applies to next of kin of deceased survivors;

applies to “pre-64” survivors (who despite the recent change in limitation are unable to pursue court claims due to prescription);

shall make “advance payments” to survivors “approaching end of life” and those over 70 years of age;

shall seek to obtain contributions from institutions primarily responsible for abuse, but payments will not be contingent upon securing such contributions;

seems very likely to be tariff based.

There are some extremely positive aspects to the scheme, which should be commended. They are the fact that “pre-64” survivors shall be entitled to compensation, the commitment to respect survivors and treat them sensitively, the advanced payments and the fact that the Scottish Government has created the scheme not only on an ex gratia basis but as a clear recognition of its own ultimate failure to protect the survivors who suffered abuse as children. It seems to view the scheme as its legal and moral obligation.

However, it seems quite clear that the level of redress will fall short of restitution; of the full level of damages to which a survivor would be entitled by pursuing a civil court claim; of financial justice. The Deputy First Minister described the financial ambition of the scheme as to provide “some degree of recognition and acknowledgment”.

For many, the impression that is created is of a Scottish Criminal Injuries Compensation Scheme for survivors and victims of historical abuse. That comment is not intended to be pejorative. It shows, again, that the Scottish Government is survivor-focused and aims to be several steps ahead of England & Wales in its drive to meet the needs of survivors. The Government’s commitment to survivors cannot be denied in light of the Childhood Abuse Inquiry, lifting limitation and now the redress scheme. The scheme in that context should be recognised for removing a fundamental and immutable block for the pre-64 survivors and the Government should be congratulated for doing so.

That is not to say that there is no place for solicitors. In its recommendations, CELCIS was clear that it was essential that survivors receive “guidance, support and representation”, and that must include legal representation. Additionally, despite the many positive aspects, it is clear that the redress scheme will provide only a limited benefit for the vast majority.

Survivors want, need and demand financial justice. That has two components. First, full restitution. Secondly, that the abuser and/or organisation responsible for their abuse, face up to and accept their wrongs by paying compensation. It seems clear that the redress scheme will not provide full financial restitution. In relation to the second point, it is perfectly clear from the Scottish Parliament debate on 23 October that while the Government will engage with institutions and will “encourage” them to contribute to the redress scheme, it cannot force them to do so. That is entirely understandable in the context of the Scotland Act. Any effort to force institutions to contribute would be likely to trigger one or more reserved matters.

In summary, therefore, the Scottish Government scheme will deliver redress, quickly, with respect and sensitivity, and it should be commended for doing so.

However, I believe that achieving full financial justice will still require victims to pursue claims through the civil courts. It is accordingly fortunate that in Scotland we have the specialist, dedicated and trauma-informed solicitors to assist those survivors in not only achieving an appropriate award under the Scottish Government redress scheme but also securing full compensation and restitution via civil court proceedings.

Laura Connor is partner and head of Survivors Team and Mass Litigation at Thompsons Solicitors